Authors

Abstract

Since the Supreme Court's decision in NLRB v. Mackay Radio & Telegraph Co. in 1938, employers have been permitted to hire permanent replacements for striking employees. The hiring of permanent replacements deprives employees engaged in an economic strike of their right to immediate reinstatement to their jobs at the conclusion of the strike. Although, under the substantive law, the "Mackay doctrine" applies to economic strikes but not unfair labor practice strikes, in practice employers permanently replace employees engaged in both types of strikes. This is possible because the unfair labor practice proceedings, which determine the type of strike, occur long after employers hire permanent replacements. In recent years the Mackay doctrine has come under increasing attack. Numerous proposals to modify or overturn the doctrine have been made, including bills introduced in Congress during the past six years. Indeed, in the 103d Congress, the House of Representatives passed a bill that would overturn Mackay, and a companion bill awaits action on the Senate floor. In this Article, Professor Corbett argues that, although the current law regarding striker replacement should be changed, some aspects of the law should be preserved-principally, the distinction between economic strikes and unfair labor practice strikes. After considering prior proposals to reform the law, Professor Corbett advocates a new proposal that would use procedural devices to limit permanent replacement in practice to economic strikes. The proposal would require employers to notify the National Labor Relations Board of their intention to hire permanent replacements. That notification would trigger an interim ban on such hiring until expedited proceedings determined the characterization of the strike. Professor Corbett argues that this proposal would reduce the uncertainty faced by all parties to a labor dispute and enable them to act based on knowledge of the applicable replacement rights of the employer and reinstatement rights of the striking employees.